You are on page 1of 7

• ..

:-- Service
All CRS Staff

Director U'
Access to CRS Reports
April 18, 2007
In the past four years CRS has hired a third of its staff. The high rate of staff turnover
is primarily the result of predicted retirements, and I have felt it important to ensure that new
employees are fully informed of our policies on publication, on the dissemination of our
products to professional colleagues, and on communications with the media- all components
of the broader issue of the appropriate public role ofCRS.
What has loosely been referred to as the "CRS publications policy" defines the limits
of the Service's authority to make its products available to anyone other than the Congress
of the United States. This policy, which has stirred significant controversy in recent years,
is the product of statutory restriction, policy guidance from our congressional oversight
committees, and CRS practices formally and informally endorsed by the Congress over the
years. Legal, institutional, and resource concerns underlie this policy as well as the other
restrictions on our interactions with the public.
Some have taken issue with our dissemination restrictions, arguing, most commonly,
that "the taxpayer paid for this work, and therefore ought to have access to it," or words to
that effect. This is an effective "sound bite", but closer examination of the issue reveals a
much more complex picture and a sound rationale for current policy. Efforts have been made
to encourage CRS to change its practices, and, failing that, to amend the law to provide for
public access, including access to our Web Site. To date these efforts have not been
successful and the Congress has made it clear that we are to adhere to the congressional
guidance that we have received in the past.
What is the rationale for CRS providing its work solely to the Congress? Three broad
concerns go to the heart of the existing policy: impairment of the performance of Members'
representational role, risk to confidentiality, and impact on the mission and congressional
focus that characterizes our efforts. These issues also inform our policies on furnishing
products to individuals outside Congress and our guidelines on staff interactions with the
Congressional Research Service Washington, D.C. 20540-7000
The Statutory Restriction on Publication
For over fifty years CRS has been statutorily prohibited from publishing its products
without oversight committee approval. Formal prohibition on publication of CRS products
originated in 1952. The limitation began in the House as a flat prohibition on publications
by the Library of Congress using funds appropriated to the Legislative Reference Service
(now CRS). In 1954 a provision was added providing for exception only with the approval
of our oversight committees. The standard appropriations language text which appears
annually in the law appropriating funds for the Legislative Branch today reads as follows:
Provided, That no part of such amount may be used to pay any salary or expense in
connection with any publication, or preparation of material therefore (except the Digest
of Public General Bills), to be issued by the Library of Congress unless such publication
has obtained prior approval of either the Committee on House Administration of the
House of Representatives or the Committee on Rules and Administration of the Senate.
The term "publication" in this context has generally been construed to encompass all
manner of communicating information to the public. The legislative history of the provision
- with its concern over diverting CRS (then LRS) resources to providing materials to the
public - and subsequent Joint Committee on the Library guidance, make clear the intended
breadth of the type of "publication" that is being barred by the provision. It is today widely
interpreted to include both distributing paper copies to the public, as well as putting the
content on a web site. In relation to the "publications policy", so-called, for CRS, the term
has been interpreted over the years to connote the act of sharing with the public - that is, with
persons or entities outside the congressional community. This interpretation is a clear
outgrowth of the context within which the Service works, i.e., in a confidential and exclusive
relationship with the Congress.
The appears each year in the annual appropriations act for the Legislative
Branch and is intended to preserve the role of CRS as a confidential resource. The
appropriations acts, supplemented by other congressional guidance that CRS has received
over the years, and supported by judicial opinions, leave to the Members and committees the
decision whether and how to place individual CRS products in the public domain. Members
routinely make our products available to interested persons either directly, by inclusion in
congressional publications, or through their own web sites.
The Publication Prohibition in Practice
In a 1980 communication the Joint Committee on the Library reaffirmed the prohibition
against public dissemination of our work:
Congressional policy that the circulation ofCRS materials prepared specifically for congressional
use be limited to the Congress, and thatthe long-standing policy of confidentiality in the work of
CRS for individual congressional clients, should be maintained.
It is noteworthy that in this instance the Joint Committee referred to the restriction on
"circulation" of CRS materials, making it clear that the term "publication" in the statute is
interpreted broadly.
The continued vitality of congressional directives regarding the confidentiality of CRS
material is reinforced by statements and actions of both the Senate and the House. A 1980
Senate Resolution (S. Res. 396, 96
Cong., 2d Sess. 1980) is one of the clearest official
expressions of these principles. This resolution, occasioned by a subpoena issued in an
administrative proceeding for CRS material, reads:
Whereas, the communications between [CRS] and the members and committees of the
Congress are an integral part of the legislative process and privileged under the Speech
or Debate Clause of the Constitution, [and] ... memoranda of [CRS] are in the custody and
under the control of the members and committees for whom they have been prepared, and
[CRS] has no authority to release them to anyone outside the Congress ... Resolved, That
it is the determination ofthe Senate that the communications of [CRS] to the members
and committees of the Congress are under the custody and control of the Congress and
may be released only by the Congress, its Houses, committees and members, in
accordance with the rules and privileges of each House ...
126 Congo Rec. S3l62 (daily ed. March 27, 1980).
A decade later, Senate Legal Counsel was authorized by resolution to challenge a
subpoena that was issued in a case in the U.S. Tax Court to an American Law Division
attorney. The subpoena sought both testimony and documents relating to a memorandum the
attorney had prepared for a Senator on certain tax questions that had been posed by a
constituent. In introducing the resolution, the Senate Majority Leader reiterated the
importance of "protecting the work done by CRS in preparing communications to the
Members and committees of Congress":
A committee or Member of the Senate, of course, may determine to make available to
the public a report or memorandum which the Congressional Research Service has
provided to the committee or Senator. Senator McClure, in this case, sought to assist his
constituent in that way. Nevertheless, even when a final product prepared by CRS is
released to the public, it is important to protect the confidentiality of CRS' s preparatory
work in order to encourage the freest possible exploration by CRS of issues about which
committees or Members seek information or advice. It would be detrimental to the free
flow ofinformation and advice within the Congress to subject lawyers and other analysts
at CRS to examination outside of the Congress about the basis of their communications
to committees and Members.
136 Congo Rec. S7112 (daily ed. May 24, 1990).
House General Counsel has similarly successfully defended CRS against efforts to subpoena
documents related to analysts' work for Members and committees. The assertions of
privilege for the Service's materials in administrative and judicial proceedings have been
uniformly successful.
In summary, our work remains proprietary to the members unless and until they decide
Institutional Concerns Regarding Public Access
Confidentiality. The "Speech or Debate" clause of the Constitution, referenced in the
above congressional resolutions, states that "for any Speech or Debate in either House,
[Members] shall not be questioned in any other Place." While this clause has been
interpreted to grant broad legal immunity to Members and their aides for statements made
during the course of debate or when activity occurs in the performance of "legislative acts,"
it has been made clear in recent years that the protection does not extend to representational
responsibilities generally. The protection has been extended to areas where it has been
considered necessary to prevent impairment of deliberations and other legitimate legislative
activities. Of major concern here has been the extent to which a policy permitting significant
public dissemination of our products might render the protection that our support to
Members currently enjoys under the umbrella of this constitutional provision inapplicable
to congressional communications with CRS. Currently, CRS products prepared for the
Congress are considered to be protected from scrutiny by third parties without permission
of the Congress or the Member for whom the work was prepared. Stated simply, the concern
in this regard is that if the Service were to become generally known to frequently distribute
products directly to the general public - and thereby to be seen more as a purveyor of
products to the public rather than as adjunct staff to Congress - we might be subject to
"questioning" (Le., litigation, subpoena, or other demand for production of documents)
regarding our work that would do serious harm to our confidential working relationship with
our congressional clients.
Although the Courts have recognized the propriety of congressional activities intended
to inform the general public, this informing function has been held to be outside the scope
of so-called speech or debate immunity. Recent judicial narrowing of the scope of the
application of this protection has exacerbated the potential threat to confidentiality. Case law
supports the conclusion that widespread dissemination of products to the general public
would likely be viewed by the courts as an exercise of Congress' representational or
informing function for which speech or debate immunity would not attach. While an effort
could be made to distinguish CRS confidential memoranda from our congressional
distribution reports, the potential for damage to speech or debate protection claims for any
CRS products would potentially still be significant. Under proposals for wholesale
distribution of CRS products to the public, those engaged in such distribution - CRS staff,
congressional staff, or Members - might be vulnerable to lawsuits seeking release of CRS
files, damages, injunctions, etc. More likely - and more importantly for future relations
between CRS and Congress - would be an erosion over time of the idea that CRS works
solely for the Congress and that our analysts operate as a confidential staff resource to
Members and committees.
Congressional Focus and Resource Issues. Public expectations of access could have
significant cost implications for CRS - both in responding to requests and in answering
public concerns regarding products provided. Widespread public access to CRS products
could cause analysts to become more conscious of the need to address views, methods,
disciplines, and expectations of a non-congressional audience, and thereby shift the focus of
our products away from their current emphasis on the congressional audience. As a result,
our congressional clients, recognizing such a change in the content and protection afforded
our work, would either request more confidential memoranda, which are available only to
the requester, or, more significantly, no longer have confidence in CRS' ability to truly serve
as their adjunct staff. As we know, memoranda are more resource intensive to prepare than
products which are available for distribution to all Members and committees and take
advantage of economies of scale. Writing for a public audience also has the potential to alter
the extent to which CRS products can rely on a certain level of knowledge on the part of the
reader, complicating the analyst's task and perhaps increasing the length of products. There
is also the potential for incurring significant costs in any process of creating an effective
system for making CRS work available to the public, the monitoring of products for
necessary redaction, and the cost of a likely increase in the volume of requests for tailored
individual requests for written products that are not made available to the public.
Recent Public Access Issues
Policy on Distribution Outside the Congressional Community. In keeping with the
policies outlined above, CRS has generally refrained from making its products directly
available to non-congressional requesters, save for a few exceptions based on principles of
reciprocity. For example, research divisions have furnished individual products to Executive
Branch and Judicial Branch offices and employees, state and local government officials, and
representatives of foreign government entities when it has been deemed to enhance CRS
service to the Congress. Analysts occasionally respond to requests for products from
individual researchers, corporations, law offices, private associations, libraries, law firms,
and publishers where a collegial exchange of information is deemed to benefit our work.
With limitations, on occasion CRS also furnishes CRS products to the media and foreign
embassies for similar reasons.
I recently polled the divisions on their practices with respect to furnishing products to
individuals and organizations not in the congressional community. As a result of the varying
practices that were revealed, I restated the CRS policy on distribution of our products to such
entities, articulating the need for agreement on standards across the Service to ensure
consistency, to better appraise our current practices, and to be better able to articulate the
standard of the Service in this regard when asked. This policy looks specifically at the
sharing of our products with government entities (both federal, state, and local), with public
organizations, institutions, and individuals, with the media, and with foreign embassies.
Clearly, this policy is itself an outgrowth of the publications policy, reflecting the fact that
our work is intended for Congress, and it is the Congress that decides when further
dissemination is appropriate. Adherence to consistent and articulated standards for sharing
with those outside the congressional community is important to our efforts to maintain our
confidential relationship with Congress and to any future need to enforce restrictions. Our
congressional overseers would expect no less of us. Despite misunderstanding fueled by
mis-characterization by the press and others, this policy restatement does not further prohibit
dissemination of products under certain circumstances, but simply requires accounting of the
practices via division notice and approval.
The Media. I also recently updated the policy on interacting with the media. In doing
so, I emphasized that the risks to individual staff members and to CRS as a whole are greater
with today's media because of the instant dissemination of news, the competition among
media outlets, and the lack of control over quotation, its context and subsequent appearance
elsewhere. The updated policy retains the basic requirement that has been a part of the CRS
media policy since its inception: "staff must adhere to the basic tenets ofCRS, respecting the
confidential nature of our work for Congress and the requirements of objectivity,
non-partisanship and non-advocacy whenever they speak to the media on matters relating to
their work." The policy also provides that all on-the-record media interactions be reported
to division/office management, as was urged under the former policy. It describes a role for
the Office of Communications in assisting staff in determining if speaking with the media
is advisable, and in following up on questions ofthe accuracy of reporting on staff comments
or on CRS products.
The Internet and CRS Products. We are all aware of the proliferation oflntemet sites
that make CRS products available - some for a fee, some free of charge. In this electronic
age it is obviously very difficult to control access to our congressional distribution products
that appear on our own Web Site, even with restricted access to that site. Some sites present
our products in searchable form, some not. Some are relatively complete in their coverage,
while others focus on particular subject areas. Some publishers have even published CRS
reports as hard copy books without permission of the author, often in out-of-date and
excerpted form that runs the risk of misleading the reader. What they all have in common
is that they make these products available without CRS approval. The fact that our work -
the product of a government entity - is not copyrighted, makes it legally impossible to
prohibit such use. The presence of these access points for our products, however, does not
diminish the need for CRS to carefully hew to our obligation not to be involved in public
distribution activities.
In part through added exposure, especially through online sources, CRS products have
come to be widely cited as authoritative, timely, and accurate sources of information on
public policy issues of the day. Audiences, including policy makers, industry leaders,
professors, and students, have viewed our products as trusted and valued sources of
information. However, over the years we have preserved CRS' confidential relationship with
the Congress by severely restricting access to our products as a general policy. Any
relaxation of restrictions on dissemination to the public would be in conflict with the history
of legislative provisions, policy statements and communications on the issue. These
pronouncements have had the effect of restricting the disclosure or publication of CRS
materials by emphasiZing that communications from the Service to Congress are
constitutionally protected, confidential, and subject to the custody and control of the
Congress. The same rationales have been relied upon to limit access to the CRS Web Site
to congressional users. I am convinced - to borrow the sound bite I noted at the beginning
- that the true value of CRS is as a resource devoted solely to the needs of Congress. In that
way, the taxpayers realize the utmost value for their "investment." Our staff is also better
able to maintain its reputation for objective, authoritative and advocacy-free expertise
devoted to an informed National legislature.
The reasons for limiting public dissemination of our work can be summarized as
follows. First, there is a danger that placing CRS, a legislative support agency, in an
intermediate position, responding directly to constituents as members of the public, would
threaten the dialog on policy issues between Members and their constituents that was
envisioned by the Constitution as the essence of the representational role of Members.
Leaving dissemination of CRS products to the discretion of Members avoids placing a
"faceless bureaucracy" between constituents and their elected representative. Second, the
current judicial and administrative perception of CRS as "adjunct staff' of the Congress
might be altered if CRS were seen as speaking directly to the public, putting at risk Speech
or Debate Clause constitutional protections afforded the confidential work performed by this
agency. To date, litigation demands for testimony of CRS employees and production of
documents used in preparing memoranda and reports for the Congress have been quashed.
And third, if CRS products were routinely disseminated broadly to the public, over time
these products might come to be written with a large public audience in mind and would no
longer be focused solely on congressional needs. In addition to placing a burden on
congressional offices asked to respond or comment on CRS work, responding to the
inevitable questions posed by the public to CRS would likely require the Service to shift
significant resources away from direct service to the Congress in order to meet this demand.
Other related policies - dissemination of products to those outside the congressional
community and the media policy - flow from similar principles. I believe CRS would be a
very different place and suffer a diminution in its role as adjunct staffto Congress were it not
for the various restrictions we place on product distribution and staff interaction with the
press. And, despite the somewhat hyperbolic reaction of some, there is little new in the
recently announced policies nor anything particularly onerous. The majority of our seasoned
staff abide by these regulations and understand and are comfortable with the principles that
underlie them. Those who have joined CRS in the last few years must also become
acculturated in these practices and understand their origin and rationale.